Citation NR: 9712978
Decision Date: 04/17/97 Archive Date: 04/29/97
DOCKET NO. 95-32 686 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for a gastrointestinal
disorder secondary to anxiety reaction.
2. Entitlement to service connection for a skin disorder, to
include tinea pedis or prurigo nodularis, secondary to
anxiety reaction.
3. Entitlement to service connection for an eye disorder.
4. Entitlement to an increased rating for an anxiety
reaction, currently evaluated as 50 percent disabling.
REPRESENTATION
Appellant represented by: American Red Cross
ATTORNEY FOR THE BOARD
Tresa M. Schlecht, Associate Counsel
INTRODUCTION
The appellant (the veteran) had active service from July 1943
to November 1944.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Jackson, Mississippi.
The Board notes that, in a March 1995 claim, the veteran
requested service connection for an ear disorder. It does
not appear that this claim has been adjudicated. The RO’s
attention is directed to this issue.
The claims for secondary service connection for a skin
disorder and for an increased evaluation for anxiety
reaction, are addressed in the remand appended to this
decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he incurred an eye disorder as the
result of an explosion in service. He also contends that he
has a stomach disorder as a result of his service-connected
anxiety reaction.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not submitted
well-grounded claims of entitlement to secondary service
connection for a gastrointestinal disorder and to service
connection for an eye disorder.
FINDINGS OF FACT
1. There is no medical evidence to establish that
gastroesophageal reflux was caused by or is the result of the
service-connected anxiety disorder.
2. The medical evidence does not establish that an eye
disorder, which was first shown many years after service, is
the result of service or incident of service.
CONCLUSION OF LAW
The veteran has not submitted a well-grounded claim of
entitlement to secondary service connection for a
gastrointestinal disorder or for service connection for an
eye disorder. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991);
38 C.F.R. § 3.303 (1996); Slater v. Brown, 9 Vet.App. 240
(1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran contends that he is entitled to service
connection for an eye disorder resulting from an explosion in
service and for a gastrointestinal disorder resulting from
his service-connected anxiety disorder. The threshold
question with respect to the claims is whether those claims
are well-grounded within the meaning of 38 U.S.C.A. § 5107.
As discussed below, the Board finds that the veteran has not
presented well-grounded claims for service connection for
these disorders, and the Board finds that there is no further
duty to assist the veteran in developing the facts of those
claims.
A well-grounded claim is a plausible claim, one which is
meritorious on its own or capable of substantiation. Slater
v. Brown, 9 Vet.App. 240, 243 (1996) (citing Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990)). In order for a service
connection claim to be well grounded, there must be competent
evidence of current disability (a medical diagnosis),
competent evidence of incurrence or aggravation of a disease
of injury in service (lay or medical evidence), and evidence
of a nexus between the in-service injury or disease and the
current disability (medical evidence). Caluza v. Brown, 7
Vet.App. 498, 506 (1995)). The credibility of the evidence
is presumed in determining whether a claim is well grounded.
Id. 506.
Service connection is warranted for a chronic disease or
injury incurred in or aggravated by active service.
38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303,
3.307, 3.309 (1996). Certain diseases, if defined by statute
or regulation as chronic, may be presumed service connected
if the disease manifested to a degree of 10 percent or more
within one year after the date of separation from service.
38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
If a disorder is not shown to be chronic during service,
continuity of symptomatology after service is required to
establish that a disorder is chronic. 38 C.F.R. § 3.303.
1. Claim for Service Connection for a Gastrointestinal
Disorder
In a claim submitted in March 1995, the veteran contended
that he had stomach problems which were secondary to his
service-connected anxiety reaction. As a preliminary matter,
in considering the current claim, the Board notes that he
previously sought service connection for a stomach disorder.
That claim was denied by a final rating decision issued in
January 1945. In the current adjudication, the RO apparently
took the position that the current secondary service
connection claim is a separate and distinct claim from the
previously-denied claim for direct service connection. The
Board agrees. See Ashford v. Brown, No. 94-384, slip op. at
6 (U.S. Vet. App. Feb. 27, 1997) (citing Ephraim v. Brown, 82
F.3d, 399, 402 (Fed. Cir. 1996); Goss v. Brown, 9 Vet.App.
109 (1996). Thus, analysis as to whether the evidence is new
and material is not applicable.
Historically, the service medical records reflect that the
veteran was hospitalized in June 1944 for complaints of
stomach pain. He reported having had stomach problems for
two years. X-rays of the esophagus, stomach and duodenum
were normal. The diagnosis was chronic gastroenteritis. The
separation examination was normal with respect to the
gastrointestinal evaluation. After his separation from
service, there are complaints of stomach pain, but a chronic
gastrointestinal disorder was not shown medically until many
years later. VA outpatient records in 1994 and 1995 reflect
that the veteran was receiving treatment for gastroesophageal
reflux noted on barium swallow in March 1993.
At the time of VA examination in April 1995, X-ray
examination showed gastroesophageal reflux. The examiner
provided opinion that the esophageal reflux was not the
result of the veteran’s anxiety neurosis. There is no
medical evidence or opinion to the contrary.
The veteran has not submitted any medical evidence or opinion
to support his contention that he has a gastrointestinal
disorder secondary to his service-connected anxiety reaction;
nor has he indicated that such medical evidence or opinion
exists. In fact, the medical opinion of record contradicts
his assertion that gastroesophageal reflux is related to his
anxiety disorder. The veteran’s opinion as to the medical
etiology of the esophageal reflux, as that of a layperson, is
not competent medical evidence to establish a well-grounded
claim for esophageal reflux. Grottveit v. Brown, 5 Vet.App.
91 (1993). He has not met the requisite elements of a well-
grounded claim, and his appeal must be denied. Caluza v.
Brown, 7 Vet.App. 498, 506 (1995).
2. Claim for Service Connection for an Eye Disorder
In a claim submitted in March 1995, the veteran contended
that he had an eye disorder secondary to damage sustained
when he was injured by an explosion during service. Service
medical records do not show that he of eye problems or that
he sustained an eye injury. His visual acuity was 20/20 in
both eyes at the time of separation examination in November
1944.
During VA examination conducted in February 1947, the veteran
provided a history of eye complaints, including blurring of
vision and specks before his eyes. He stated that these
symptoms started following explosion of a 40 millimeter anti-
aircraft gun in service in California. On VA examination in
April 1947, his uncorrected visual acuity was 20/20 in both
eyes.
VA outpatient treatment notes dated in May 1979 reflect that
the veteran’s visual acuity was 20/400 in the right eye, with
corrected acuity of 20/60, and visual acuity of 20/30 in the
left eye without correction. Visual fields were normal. An
early cataract was diagnosed.
The record of VA outpatient eye treatment provided in
December 1994 discloses that the veteran was status post
extraction of cataracts with intraocular lens implants in
both eyes. He also had a history of retinal detachment, and
was status post treatment of the left eye for that condition
in March 1994. At the time of December 1994 treatment, he
stated he had a foreign body sensation in both eyes. His
visual acuity in the right eye was 20/80 without correction,
and 20/40 with correction. Visual acuity of the left eye was
not stated. No cause for the veteran’s complaint was noted.
The evidence of record reflect that the veteran’s visual
acuity was normal at the time of discharge and proximate to
service. His service medical records do not reflect disease
or injury to the eye. There is no medical evidence or
opinion to establish that decreased visual acuity, a cataract
diagnosed in 1979, or any other eye disorder diagnosed later,
is etiologically related to service or to any incident of
service. The veteran’s unsupported lay assertion that he has
an eye disorder as the result of an explosion in service is
not competent medical evidence to establish a well-grounded
claim. Grottveit v. Brown, 5 Vet.App. 91 (1993). The
veteran has not met the requisite elements of a well-grounded
claim, and his appeal must be denied. Caluza v. Brown, 7
Vet.App. 498, 506 (1995).
The Board recognizes that it is disposing of these issues on
a basis different from that stated by the RO, since the
veteran was not specifically notified that he had failed to
submitted evidence of well-grounded claims. The Board notes
that the veteran was, however, clearly notified that he had
failed to submit evidence that a stomach disorder resulted
from an anxiety disorder or that he had an eye disorder in
service or as the result of service.
When a claimant fails to submit a well-grounded claim under
38 U.S.C.A. § 5107(a), VA, under some circumstances, has a
duty under 38 U.S.C.A. § 5103(a) (West 1991) to advise the
claimant of the evidence required to complete the
application. Epps v. Brown, 9 Vet. App. 341 (1996);
Robinette v. Brown, 8 Vet.App. 69, 78 (1995). The Board
notes that the veteran has not indicated that any other
relevant records are available.
The Board has therefore considered whether the veteran has
been given adequate notice to respond, and if not, whether he
has been prejudiced thereby. Bernard v. Brown, 4 Vet.App
384, 394 (1993). The Board concludes that he has not been
prejudiced by the decision to deny his appeal. See Edenfield
v. Brown, 8 Vet.App. 384 (1995). This is true in particular,
as the veteran failed to meet the initial threshold for
establishing well-grounded claims.
ORDER
The claims of entitlement to secondary service connection for
a gastrointestinal and service connection for an eye disorder
are not well-grounded, and are denied.
REMAND
The Board notes that the rating factors for determining
disability due to a mental disorder were amended, effective
November 7, 1996. See 61 Fed. Reg. 52,695-52,702 (1996).
Under the new rating criteria, the severity of the effects of
the symptoms, rather than the examiner’s subjective
assessment of the severity of the diagnosed disability,
determines the rating. Id. In addition to different rating
criteria, the revised 38 C.F.R. § 4.130 states that the
nomenclature in the rating schedule is based on the American
Psychiatric Association: Diagnostic and Statistical Manual of
Mental Disorders, Fourth Edition (DSM-IV).
Although the amended rating criteria may not, in all
instances, result in liberalization of the criteria for
determining disability due to mental disorder, the new
criteria may be more favorable to the veteran in this case
because of the increased emphasis of the effect of the
symptoms on industrial adaptability. Further factual and
procedural development of this claim is required, including
more complete VA examination in order to determine the
current diagnosis and to evaluate the claim in light of the
amended rating factors.
The veteran’s claim for secondary service connection for a
skin disorder, to include prurigo nodularis and tinea pedis,
requires additional factual development, including medical
opinion as to the etiology of those disorders.
Therefore, this case is REMANDED for the following:
1. The RO should obtain records of the
veteran’s VA medical traetment from April
1995 to the present. The veteran should
be asked whether he has recently received
or is now receiving dermatologic or
psychiatric treatment from any provider
other than VA. All such records should
be associated with the claims folder.
2. The veteran should be afforded a VA
social and industrial survey to assess
his employment history and day-to-day
functioning. A written copy of the
report should be inserted into the claims
folder.
3. The RO should afford the veteran a
comprehensive VA psychiatric examination
to determine the diagnosis and severity
of any psychiatric disorder(s). Any
indicated tests should be conducted. The
claims folder and a copy of this remand
must be made available and reviewed by
the examiner prior to the examination.
The examiner should indicate the degree
of occupational and social impairment
created by any service-connected
psychiatric disorder(s). If any
psychiatric disorder other than an
anxiety reaction is diagnosed, the
examiner should state, as to each
disorder, whether it was manifested in or
is etiologically related to service or to
a service-connected mental disorder. Any
diagnosis of a mental disorder must
conform to the American Psychiatric
Association: Diagnostic and Statistical
Manual of Mental Disorders, Fourth
Edition (DSM-IV). The examiner must
assign a GAF score and must identify the
specific symptoms and findings that
justify the GAF score assigned.
The evaluation is to be made under a
format developed as a result of the new
criteria, if any. To assist the
examiner, the relevant new rating
criteria in this case are as follows: A
50 percent evaluation is warranted when
there is occupational and social
impairment with reduced reliability and
productivity due to such symptoms as:
flattened affect; circumstantial,
circumlocutory, or stereotyped speech;
panic attacks more than once a week;
difficulty in understanding complex
commands; impairment of short and long-
term memory; impaired judgment; impaired
abstract thinking; disturbances of
motivation and mood; or difficulty in
establishing and maintaining effective
work and social relationships.
A rating of 70 percent is warranted when
there is occupational and social
impairment, with deficiencies in most
areas such as work, school, family
relations, judgment, thinking, or mood,
due to such symptoms as: suicidal
ideation; obsessional rituals which
interfere with routine activities; speech
intermittently illogical, obscure, or
irrelevant; near-continuous panic or
depression affecting the ability to
function independently, appropriately and
effectively; impaired impulse control;
spatial disorientation; neglect of
personal appearance and hygiene;
difficulty in adapting to stressful
circumstances; or inability to establish
and maintain effective relationships.
A total disability rating is warranted
when there is total impairment due to
such symptoms as: gross impairment in
thought processes or communication;
persistent delusions or hallucinations;
grossly inappropriate behavior;
persistent danger of hurting self or
others; intermittent inability to perform
activities of daily living;
disorientation to time or place; or
memory loss for names of close relatives,
own occupation, or own name.
4. The veteran should be afforded VA
dermatology examination to determine the
etiology of current skin disorders, tinea
pedis and prurigo nodularis. The claims
file must be made available to the
examiner. Following the examination, and
the diagnosis of all skin disorders, the
examiner should provide an opinion as to
whether the veteran has any skin disorder
or disorders caused by, or the result of,
the service connected anxiety reaction.
The reasoning of the examiner should be
set forth.
5. The RO should review the claim folder
to ensure that development has been
completed in full. If any development is
incomplete, including if an examination
does not include the opinions or
descriptions requested, appropriate
corrective action is to be taken.
6. The RO should then readjudicate the
claims, and should consider the claim for
an increased evaluation for service-
connected psychiatric disability under
both the revised rating criteria and the
previous rating criteria, whichever is
most favorable to the veteran. If any
benefit remains denied, the veteran and
his representative should be provided
with a supplemental statement of the
case, and with a reasonable time within
which to respond thereto.
In order to avoid undue delay in this case, the RO should
make certain that the instructions contained in this
decision, detailing the requested development, have, in fact,
been substantially complied with.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
NANCY I. PHILLIPS
Member, Board of Veterans' Appeals
(CONTINUED ON NEXT PAGE)
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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